STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

DREAMA A. MILLER, Complainant

OAK-DALE HARDWOOD PRODUCTS, INC., Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 9200205, EEOC Case No. 26G920885

An administrative law judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on March 24, 1994. Respondent filed a timely petition for review by the commission.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:

ORDER

The decision of the administrative law judge (copy attached)is modified as follows:

The administrative law judge's Order is deleted and the following Order is substituted therefor.

"1. That the Respondent shall cease and desist from discriminating against the Complainant in violation of the Wisconsin Fair Employment Act because of her sex.

2. That the Respondent shall make the Complainant whole for all losses in pay that the Complainant suffered by reason of its unlawful conduct by paying the Complainant the sum she would have earned as an employe from the date of termination until the date of the hearing. The back pay for the period shall be computed on a calendar quarterly basis with an offset for any interim earnings during each calendar quarter. Any unemployment compensation or welfare benefits received by the Complainant during the above period shall not reduce the amount of back pay otherwise allowable, but shall be withheld by the Respondent and paid to the Unemployment Compensation Reserve Fund or the applicable welfare agency. Additionally, the amount payable to the Complainant after all statutory set-offs have been deducted shall be increased by interest at the rate of 12 percent simple. For each calendar quarter, interest on the net amount of back pay due (i.e., the amount of back pay due after set-off) shall be computed from the last day of each such calendar quarter to the day of payment. Pending any and all appeals from this Order, the total back pay will be the total of all such amounts.

3. That the Respondent shall pay the Complainant's reasonable attorney's fees in the amount of $8,600.00 and costs in the amount of $431.50, for a total of $9,031.50 in reasonable attorney's fees and costs associated with this matter. A check in the amount of $9,031.50 shall be made payable jointly to complainant Dreama Miller and to Attorney Carol N. Skinner and delivered to Ms. Skinner.

4. Within 30 days of the expiration of time within which an appeal may be taken herein, Respondent shall submit a compliance report detailing the specific action taken to comply with the commission's Order. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P. O. Box 8126, Madison, Wisconsin."

As modified, the decision of the administrative law judge is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed December 13, 1994
164

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

MEMORANDUM OPINION

Merits: The complainant, a female, established at hearing that she was frequently subjected to jokes and comments of a sexual nature by a co-worker and by her supervisor, many of which were extremely lewd and vulgar, as well as to physical contact by those individuals. The respondent does not deny that these incidents occurred, but argues that the complainant failed to establish the elements of a hostile environment claim. To establish a sexual harassment claim under a hostile environment theory the complainant must prove 1) that she is a member of a protected class; 2) that she was subjected to unwelcome sexual harassment; 3) that the harassment was based on sex; 4) that the harassment affected a term, condition or privilege of employment; and 5) that the employer knew or should have known of the harassment and failed to take appropriate remedial action within a reasonable time. Vervoort v. Central Paper, (LIRC, January 25, 1989). In spite of the respondent's protestations to the contrary, which are discussed at greater length below, the commission is satisfied that the complainant has made such a showing.

First, the respondent suggests that the conduct in question was not unwelcome to the complainant because she sometimes laughed at the jokes and because she participated in "retaliatory touching." In so arguing, the respondent ignores the fact that one of the two men responsible specifically admitted that he knew the complainant did not want to be "hassled" and that she did not enjoy the vulgar comments. It is also undisputed that the complainant complained to the respondent about the conduct in question on at least two occasions. Thus, there can be no doubt that the conduct was unwelcome to the complainant. Further, although the commission does not find that the complainant enjoyed the sexual joking--she testified that she did not participate and that, although she struck her male co-worker on the arm on one occasion, this occurred only after he hit her on the buttocks with a fly swatter--it specifically rejects the notion that an employe who laughs at the occasional off-color joke waives her legal protections against unwelcome sexual harassment.

The respondent also argues that the conduct in question was not directed at the complainant because of her sex, since the males responsible joked with all the employes, male and female alike. However, the sexual jokes and remarks directed at the complainant were highly personal in nature and the record contains nothing to suggest that male employes were subjected to similar conduct. For instance, the commission very much doubts that male workers were subjected to comments about their breast size or jokingly offered money in exchange for sexual favors. To the contrary, the evidence indicates that the complainant was harassed specifically because she was a female and that she would not have been subjected to such conduct were it not for her sex.

Next, the respondent suggests that there was no sexual harassment since the conduct in question did not affect the complainant's rate of pay, benefits, working hours or job security. The commission rejects this argument. The law contains no requirement that an employe suffer with respect to the tangible conditions of her employment in order to establish a hostile work environment. To the contrary, it is well established that sexual harassment which is sufficiently severe or pervasive so as to alter the conditions of the victim's employment and create an abusive working environment affects a term or condition of employment. See Meritor Savings Bank v. Vinson, 477 U.S. 57, 40 FEP Cases 1822, 1827 (1986).

The respondent then makes the argument that it is not liable for a hostile work environment because the complainant failed to notify the respondent that she was being harassed by her supervisor until a few days before she quit her job and because, although the complainant complained to the general manager about her co-worker's actions, she told him not to talk to the co-worker about the situation. However, the respondent's Exhibit 3, a contemporaneous note prepared by the general manager immediately after the complainant brought the sexual harassment to his attention on May 24, 1991, clearly indicates that the complainant reported harassment by both individuals at that time. It is, therefore, obvious that the respondent became aware that the complainant was being harassed by her supervisor more than three months before the complainant quit her job, yet took absolutely no action. In addition, the complainant specifically denied telling the general manager not to speak with her co-worker, and the fact that she brought the harassment to his attention suggests that she did, in fact, want him to take action. Further, even if it were found that the complainant did ask the general manager not to speak with her co-worker, this fact would not serve to protect the respondent from liability. It is not the employe's obligation to direct the employer in its resolution of her complaint. To the contrary, once an allegation of sexual harassment is brought to the employer's attention, the employer has an affirmative duty to undertake appropriate actions to address the problem. Where, as here, the employer knew that one of its employes was being sexually harassed, but made no attempt to remedy the situation, the employer must be held responsible for the harassment.

Finally, the respondent contends that even if the complainant did establish a hostile work environment, her quitting cannot be considered a constructive discharge, since she quit for reasons unrelated to the sexual harassment. The respondent explains that the complainant really quit because she was irritated by her foreman telling her to go back to work. While it is true that the complainant's quitting occurred during an argument with her supervisor in which he told the complainant to go back to work, the argument occurred immediately after the supervisor made a crude remark about the complainant's sexual activities which resulted in her walking away from her work station. The complainant's quitting was, therefore, directly related to the sexual harassment. Given the pervasiveness of the sexual harassment and the respondent's complete failure to take any remedial action, the complainant reasonably concluded that she had no alternative but to quit her employment. Under all of the circumstances, the commission agrees with the administrative law judge's assessment that the complainant's quitting amounted to a constructive discharge.

Back pay/front pay: The administrative law judge ordered the respondent to offer the complainant reinstatement and to make her whole by paying her the sum she would have earned from the date of termination until such time as she is reinstated, declines to accept reinstatement, or unquestionably fails to appear for work at the time and place designated by the respondent in its offer of reinstatement. Neither party is satisfied with this resolution. The complainant contends that reinstatement is not an option given the manner in which she was treated by the respondent, and that she is entitled to front pay. The respondent, on the other hand, argues that back pay should only extend until August of 1992, at which point the complainant moved to Pennsylvania and was unavailable for reinstatement. The commission has considered both of these arguments, but is persuaded by neither.

The resolution of the complainant's argument that she is entitled to front pay centers around the interpretation of section 111.39(4)(c), Stats., the remedial portion of the Wisconsin Fair Employment Act (hereinafter "Act"), which provides in relevant part:

"If, after hearing, the examiner finds that the respondent has engaged in discrimination . . . the examiner shall make written findings and order such action by the respondent as will effectuate the purpose of this subchapter, with or without back pay . . . . If the examiner finds a respondent violated s. 111.322(2m), the examiner shall award compensation in lieu of reinstatement if requested by all parties and may award compensation in lieu of reinstatement if requested by any party."

As set forth above, the Act specifically permits back pay awards in any appropriate situation in which discrimination is found. Front pay awards are also specifically permitted in lieu of reinstatement as a remedy for a violation of section 111.322(2m), Stats., which prohibits employers from retaliating against employes who engage in certain protected activities. As a matter of statutory interpretation, the fact that the legislature expressly permitted the department to award front pay in certain situations involving retaliation indicates that it knew about front pay, that it knew how to draft legislation permitting front pay awards, and that it specifically chose to limit such awards to situations in which retaliation has occurred. If the legislature had intended front pay to be available in all cases, front pay would have been mentioned along with back pay as a permissible remedy in all instances in which discrimination is found. Consequently, the commission concludes that the legislature did not intend to permit front pay awards in cases other than those involving retaliation and that it, therefore, lacks the authority to consider an award of front pay in this instance.

The commission also rejects the respondent's argument that the complainant's back pay should be limited to the point at which she moved to Pennsylvania. A discrimination victim is not required to remain in the locality in order to receive back pay and the complainant's decision to relocate does not sever her entitlement to a back pay award. The respondent, which has the burden of proving that the complainant failed to mitigate her damages, did not establish that the complainant failed to exercise reasonable diligence in seeking employment in Pennsylvania. Further, the respondent did not establish that it extended an offer of reinstatement to the complainant either before or after her move, and the respondent's speculation that she would have declined such an offer, had it been made, does not preclude her from receiving back pay.

The commission does decide, however, that the back pay award should not extend beyond the date of the hearing, at which point the complainant made it clear that she would reject any offer of reinstatement. The complainant specifically testified that she did not want reinstatement, and that she could not go back to work for the employer. This testimony, which was elicited upon direct examination by the complainant's attorney, amounts to an unequivocal waiver of reinstatement. The commission has previously held that a respondent's liability for back pay terminates at the point a complainant waives an offer of reinstatement. Marquardt (Wisner) v. Wal-Mart Stores, Inc. (LIRC, June 14, 1993). Consequently, the commission has modified the administrative law judge's remedial order to find that the complainant's back pay runs from the date of her termination, August 30, 1991, until the date of the hearing, July 8, 1993, rather than until such time as the respondent makes a written unconditional offer of reinstatement. The respondent is not required to extend such an offer.

Attorney fees and costs: Although the administrative law judge ordered the respondent to pay the complainant's reasonable attorney fees and costs associated with this matter, he neglected to include specific findings with respect to the amount of those items. Therefore, the commission makes such findings at this time.

In determining the amount of a reasonable attorney fee the commission will consider the number of hours reasonably expended on the matter, multiplied by a reasonable hourly rate. This calculation is known as the "lodestar" amount. Ecklund v. Tomah- Mauston Broadcasting Co., Inc. (LIRC, September 19, 1986), citing Hensley v. Eckerhart, 461 U.S. 424, 31 FEP Cases 1169 (1983). The complainant's attorney has requested a total of $8,660.76 in attorney fees for her work extending from her initial meeting with the complainant through the date on which the administrative law judge's decision was issued. This figure represents 100.35 hours of labor at approximately $86.00 per hour.

The respondent, which is in receipt of a copy of the complainant's attorney fee statement, has not disputed the reasonableness of the requested hourly rate and the commission finds $86.00 per hour to be a reasonable rate. The complainant's attorney, however, has not demonstrated that 100.35 hours was time reasonably expended on this matter through the date of the issuance of the administrative law judge's decision and the commission finds that number of hours to be excessive based upon counsel's work at that point. However, the complainant is also entitled to reasonable attorney fees based upon the time spent preparing her petition for review and related briefs, and the commission believes that a total of 100 hours does represent a reasonable amount of time for the complainant's attorney to have devoted to this matter up until the present point. Accordingly, the commission multiples 100 hours by the hourly rate of $86.00 per hour, to arrive at a "lodestar" figure of $8,600.00, the amount of reasonable attorney's fees to which the complainant is entitled based upon the time reasonably expended to date.

The commission has also considered the complainant's attorney's bill of costs associated with this matter and finds that the following items requested by the complainant are reasonable and allowable:

Veralex - legal research $60.03
Tina Lindahl - Witness fee 43.52
Doby Professional Reporting - 310.05
Depositions and Transcripts
Lexis 17.90
$431.50

The administrative law judge's order has been modified to specifically reflect the fact that the respondent is required to pay the complainant's reasonable attorney fees in the amount of $8,600.00, as well as costs in the amount of $431.50, for a total of $9,031.50 in fees and costs.

cc:
Carol N. Skinner
Carol S. Dittmar

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